ADJUST LAW TO MAKE JUDGES, PROSECUTORS ACCOUNTABLE

Mix Common Sense With Mercy On Withholds

In seeking to put limits on the number of times a judge can withhold
adjudication for a convicted offender, the Legislature should use calipers
instead of a sledge hammer. They should monitor racial bias in the use of
withholds, make sure judges and prosecutors are accountable for their
actions and modify the rules to curb potential abuse of the law.

Florida law allows judges discretion to give first-time felons a break by
withholding their convictions, thus keeping their records clean. Lawmakers
mustn't remove that judicial discretion. They should adjust the law to curb
abuse as was reported in The Herald's Justice Withheld series.

A second chance

Without a criminal conviction, a first-time offender can vote, qualify for
student loans or land a decent job. A young offender can get a second
chance. The law allows judges to inject mercy in sentencing to recognize
human fallibility and redemption.

But the series showed that some judges abuse that mercy by giving repeat
felons three, four and sometimes five withholds. Often, withholds are given
for repeated offenses such as rape, child sexual abuse or peddling child
pornography, leaving the public vulnerable. Now a bipartisan group of state
lawmakers has proposed legislation to put new limits on withholds.

The law could use some refining, no doubt. The series showed that white
offenders are more likely to get withholds than blacks. The cost of hiring
defense attorneys may be at work here as much as bias. But the Legislature
should require the state courts to monitor the racial distribution of
withholds over a specified period and report back to lawmakers.

Wildly erratic use

The proposed legislation would limit to two the number of withholds given
to an offender, but the second would come only if the felon stays clean for
five years after the first withhold. That may work for most crimes but not
all, especially in crimes driven by drug addiction. Experts say that it
often takes three encounters with the justice system before addicts in
rehabilitation turn their lives around. Judges should have more discretion
in drug-related cases. But withholds should be off-limits for sexual crimes
that involve assault or child pornography. The repeat potential is too great.

The series found the use of withholds was wildly erratic in state courts.
The Legislature should seek the counsel of judges, prosecutors and public
defenders to create coherent guidelines for when withholding adjudication
is appropriate. Lawmakers shouldn't remove judges' withhold discretion but
rather promote its application in concert with common sense.